Transfer Petition – Supreme Court of India | Filing and Procedure

A transfer petition before the Supreme Court of India seeks the transfer of a case from one court to another court in a different state or district. Transfer petitions are filed in situations where a party apprehends that they cannot receive a fair trial or hearing in the court where the case is pending, or where the balance of convenience requires the case to be heard in a different location. The Supreme Court exercises the power to transfer cases under the provisions of the Code of Civil Procedure, the Bharatiya Nagarik Suraksha Sanhita (BNSS, erstwhile Code of Criminal Procedure), and the relevant matrimonial statutes. The practice at KV Law files and argues transfer petitions before the Supreme Court of India.

When Can a Transfer Petition Be Filed?

A transfer petition may be filed before the Supreme Court in the following circumstances: when a civil case pending in one state needs to be transferred to a court in another state; when a criminal case pending in one state needs to be transferred to a court in another state; when a matrimonial case (divorce, custody, maintenance) needs to be transferred from one family court to another; and in any other proceeding where the interests of justice require transfer.

It is important to note that transfer of cases within the same state is handled by the High Court of that state, whereas transfer from one state to another requires an application before the Supreme Court. The practice advises clients on whether their matter requires an application before the High Court or the Supreme Court.

Grounds for Transfer

The Supreme Court considers several factors when deciding a transfer petition. These include apprehension of bias or prejudice in the court where the case is pending; the convenience of the parties, particularly in matrimonial cases where one party may have relocated; the safety and security of a party or witnesses; the balance of convenience; the interest of justice; and situations where a fair trial is unlikely in the current forum due to local influence, political pressure, or other factors.

The Supreme Court has laid down in several decisions that mere apprehension, without reasonable basis, is insufficient to warrant transfer. The apprehension must be real and well-founded, supported by material and circumstances. The practice prepares transfer petitions with detailed submissions on the grounds for transfer, supported by affidavits and supporting material.

Transfer of Matrimonial Cases

Transfer petitions in matrimonial cases form a significant category of transfer petitions before the Supreme Court. These are typically filed by one spouse seeking transfer of a divorce, custody, or maintenance proceeding from one family court to another, usually on grounds of convenience, hardship in travelling, safety concerns, or the inability to appear before the court where the case is pending. Section 25 of the Code of Civil Procedure and the transfer provisions under the Hindu Marriage Act, the Special Marriage Act, and other personal law statutes are relevant in such matters.

The Supreme Court has evolved a pragmatic approach to transfer petitions in matrimonial cases, often directing transfer to a neutral location or to a court convenient to both parties. In recent years, the Court has also facilitated the use of video conferencing to avoid the need for physical transfer in appropriate cases.

Transfer of Criminal Cases

Transfer of criminal cases from one state to another is governed by Section 406 of the BNSS (erstwhile Section 406 CrPC). The Supreme Court may order transfer of a criminal case when it is satisfied that a fair and impartial trial or investigation is not possible in the state where the case is pending. This may arise due to local influence of the accused or the complainant, threat to witnesses, or other circumstances that would prejudice the fairness of the proceedings. The practice has filed transfer petitions in criminal cases before the Supreme Court, including in cases involving allegations of political influence and cases where witnesses have expressed apprehension of intimidation.

Procedure for Filing a Transfer Petition

A transfer petition must be filed through an Advocate-on-Record before the Supreme Court. The petition must set out the grounds for transfer, the details of the case sought to be transferred, and the court to which transfer is sought. The petition is supported by an affidavit verifying the facts stated therein. Upon filing, the Supreme Court may issue notice to the respondent and may, in appropriate cases, grant an interim order staying the proceedings in the transferor court pending the hearing of the transfer petition.

The practice handles all aspects of transfer petition filing, from assessment of the merits of the transfer application to drafting, filing, and arguing the petition before the Supreme Court.

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